Supreme Court Weighs Future Of Voting Rights Act

The Supreme Court on Wednesday weighs the future of a key provision of the landmark Voting Rights Act.

Carolyn Kaster
/ AP

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Originally published on February 27, 2013 6:48 am

Once again, race is front and center at the U.S. Supreme Court on Wednesday. And once again, the bull's eye is the 1965 Voting Rights Act, widely viewed as the most effective and successful civil rights legislation in American history. Upheld five times by the court, the law now appears to be on life support.

The provision at issue in Wednesday's case applies only to specific parts of the country where discriminatory voting procedures were once rampant. It covers all of nine states, mainly in the South, plus parts of seven other states. To head off discriminatory voting procedures before they happen, the law requires covered areas to get approval from federal officials before changes can take place. So, for example, if an Alabama town wants to change polling places, or to change from an elected board to an appointed board, or to annex another part of the county, it has to first get permission from the Justice Department or a federal court in Washington, D.C.

Congress came up with the formula in 1965 to cover areas of the country that had a history of blatant, even violent discrimination in voting; but the formula has not been changed since 1975, and it still relies on election data from 1972. That's the crux of the issue before the court now: whether times have changed so much that Congress, in reauthorizing the law in 2006 without updating the formula, violated the Constitution.

Congressional Action

The congressional vote in 2006 was overwhelmingly and astonishingly bipartisan, with the Senate voting unanimously to extend the law and the House voting 390-33.

"What the 12,000 pages of hearing [testimony] showed" is that for many of the jurisdictions, "there still was pervasive discrimination," says Republican Rep. James Sensenbrenner of Wisconsin, who led weeks of hearings in the House as chairman of the Judiciary Committee.

Under the law, any jurisdiction with a clean record for 10 years could bail out, and some have done just that. There is also a provision to bail in jurisdictions that can be shown in court to have consistently misbehaved. But basically the law was unchanged — all the areas that had been subject to preclearance before 2006 still were — and Congress simply extended it for another 25 years.

That prompted a legal challenge. But when it reached the Supreme Court in 2009, the justices dodged the major issue in the case, ruling instead on a lesser question. At the same time, though, Chief Justice John Roberts' opinion for the court expressed serious doubt as to whether the law was justified anymore, and it all but invited a future challenge if Congress did not act to change the coverage formula.

'The South Has Changed'

Congress, of course, did not act, and now the issue is back in a case brought by Shelby County, Ala., a once rural and now more suburban community south of Birmingham.

Frank "Butch" Ellis has been the Shelby County attorney since 1964, the year before the Voting Rights Act was enacted.

"The South has changed," he says, adding that there is no more discrimination in the South than anywhere else. "There's probably bits of it everywhere, but there's no evidence that it's more prevalent in these covered jurisdictions than it is in the noncovered jurisdictions. That's our complaint."

Others disagree with that assessment.

"Shelby County still advertises itself as the heart of the Heart of Dixie, and that tells you that some things have not changed, or at least haven't changed enough to take the bandage off the wound," says Pam Karlan, a voting-rights expert who has written a friend of the court brief on behalf of Rep. Sensenbrenner and a bipartisan group of lawmakers involved in the 2006 reauthorization.

She notes that Shelby County could escape the preclearance requirement if it could show it had a clean record for 10 years, but the county can't make that showing. She points, for example, to a municipality within the county called Calera.

When Calera "redrew the boundaries for their city council districts, they did it to make sure that the one black member of the city council couldn't be re-elected," Karlan says.

That black council member, Ernest Montgomery, says he didn't even know that there was an effort to change his district until after the Justice Department rejected the change.

County Attorney Ellis, however, forcefully objects to the notion that Shelby County tried to use artifice to prevent a black candidate from winning an election. He notes that in a county that is 90 percent white, there have been multiple elections in which black candidates defeated white candidates.

"In any race, you show where you had a minority candidate happen to lose, I can show you two where they won with a 90 percent white population," Ellis says. He maintains that because the Voting Rights Act has not been updated in its coverage formula since 1975, the law amounts to an unjustified violation of states' equal sovereignty.

"All of our states are equally sovereign, and if you're going to impose a current burden," he argues, "you've got to have a current justification. You can't use a justification that's 49 years old."

Significance Of Case

Defenders of the law counter that the post-Civil War amendments to the Constitution explicitly give Congress the power to enact appropriate legislation to enforce and protect the right to vote.

As for Shelby County's equality argument, it treats the Constitution "as if it's about equal protection for the states, not about equal protection for people," Karlan says.

The Shelby County case is a microcosm of what the legal debate over the Voting Rights Act is all about.

"The case has enormous real and symbolic significance," observes NYU law professor Richard Pildes. At the same time, it "symbolizes different things to different people." To some, he says, "the case is all about whether there continue to be any problems with race in voting in these parts of the country." To others, "the case symbolizes whether the political process today can recognize that anything significant has changed with respect to race and politics" in the South.

To Alabama Solicitor General John Neiman, for instance, it makes no sense that Congress in 2006 simply extended the law without looking at how things have changed in the South and other covered areas. The problem "in terms of the outright defiance by officials of federal voting rights" that Congress was concerned with in 1965 just doesn't exist anymore, he says.

But Rep. Sensenbrenner disagrees: "Almost the entire Congress was convinced that [the states] hadn't cleaned up their act."

High Court's View?

The Supreme Court, however, has hinted strongly that it is not similarly convinced.

In 2009, when the high court upheld the Voting Rights Act, Chief Justice Roberts seemed to foreshadow many of the arguments that will be made by Shelby County on Wednesday.

"Things have changed in the South," Roberts said in announcing the decision. The "burdens" imposed by the law "must be justified by current needs." The Voting Rights Act, he said, "differentiates between the states in ways that are in tension with our fundamental tradition of equal sovereignty among the states." And, he added that these distinctions "may no longer be justified by current conditions."

To Sherrilyn Ifill, president of the NAACP Legal Defense Fund, those sentiments are just plain scary. She says that without preclearance, known as Section 5 of the Voting Rights Act, there is no way to challenge all of the legal twists and turns that can be used to deny minorities the right to vote and be represented.

"The reality is without Section 5, you can't keep up," Ifill said. "We can't keep up. No civil rights organization could keep up with all the minute changes that could happen in thousands of jurisdictions throughout this country, and that's why Congress created it."

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The 1965 Voting Rights Act is widely viewed as the most effective and successful civil rights legislation in American history. It resulted in exponential increases in minority voting, and it's credited with enormous growth in the election of black and Hispanic officials, especially in the South and Southwest. The law has been upheld by the Supreme Court five times, most recently in 2009. But as it goes before the high court today, its key provision is on life support.

The provision at issue in today's case applies to specific parts of the country, where discriminatory voting procedures were once routine. It covers all of nine states, mainly in the South, plus parts of seven others. In order to head off discriminatory voting procedures before they happen, the law requires covered areas to get approval from federal officials in Washington before changing voting procedures. So, for example, if an Alabama town wants to change polling places or to change an elected board to an appointed board, or if it wants to annex another part of the county, it has to get permission first from the Justice Department.

Congress came up with a formula in 1965 to cover areas of the country that had a history of blatant, even violent discrimination in voting, but the formula has not been changed since 1975. And that's the crux of the issue before the Court today, whether times have changed so much that Congress - in reauthorizing the law without sufficiently updating it - violated the Constitution.

The congressional vote in 2006 was overwhelmingly and astonishingly bipartisan, with the Senate voting unanimously to extend the law and the House voting 390 to 33.

James Sensenbrenner, a conservative Wisconsin Republican, led weeks of hearings in the house as chairman of the Judiciary Committee.

REPRESENTATIVE JAMES SENSENBRENNER: What the 12,000 pages of hearing showed is that in many of the jurisdictions, there still was pervasive discrimination. It really was a mountain of testimony.

TOTENBERG: Under the 2006 extension, all the areas that had been subject to pre-clearance before still were. Any jurisdiction with a clean record for 10 years could bail out, and many have done that. There was also a provision to bail in jurisdictions that can be shown in court to have consistently misbehaved. But basically, the law was unchanged and extended for another 25 years.

That prompted a legal challenge. But when it reached the Supreme Court in 2009, the justices dodged the major issue in the case, ruling instead on a lesser question. At the same time, though, Chief Justice John Roberts' opinion for the court expressed serious doubt as to whether the law was justified anymore, and it all but invited a future challenge if Congress did not act to change the coverage formula.

Congress, of course, did not act, and now the issue is back, in a case from Shelby County, Alabama, a once rural and now more suburban community south of Birmingham.

Butch Ellis has been the Shelby County attorney since 1964, the year before the Voting Rights Act was enacted.

BUTCH ELLIS: The South has changed. The Supreme Court itself said just exactly that.

TOTENBERG: There's no more discrimination in the South than anywhere else, he says.

ELLIS: There's probably bits of it everywhere, but there's no evidence that it's more prevalent in these covered jurisdictions than it is in the non-covered jurisdictions. That's our complaint.

PAT KARLAN: Shelby County still advertises itself as the heart of the heart of Dixie, and that tells you that some things have not changed, or at least haven't changed enough to take the bandage off the wound.

TOTENBERG: Pam Karlan is a voting rights expert who's written a friend of the court brief on behalf of Congressman Sensenbrenner and the Judiciary Committee. She notes that Shelby County could escape the pre-clearance requirement if it could show that it had a clean record for 10 years, but the county can't make that showing. She points, for example, to a municipality within the country called Calera.

KARLAN: When they redrew the boundaries for their city council districts, they did it to make sure that the one black member of the city council couldn't be reelected.

TOTENBERG: That member was Ernest Montgomery, who says he didn't even know there was an effort to change his district until after the Justice Department rejected the change.

ERNEST MONTGOMERY: I had no knowledge of this till after the election. This was about my district.

TOTENBERG: Right.

MONTGOMERY: This was about my people.

TOTENBERG: County attorney Ellis forcefully objects to the notion that Shelby County tried to use artifice to prevent a black candidate from winning election. He says that in a county that's 90 percent white, there have been multiple black candidates who have defeated white candidates.

ELLIS: If any race you show where you had a minority candidate happen to lose, I can show you two where they won, with a 90 percent white population.

TOTENBERG: He maintains that since the Voting Rights Act has not has not been updated, the law is an unjustified violation of state sovereignty.

ELLIS: We should not have to go to Washington, D.C. to get that pre-cleared. All of our states are equally sovereign, and if you're going to put a current burden on them, you've got to have a current justification. You can't use a justification that's 49 years old.

TOTENBERG: The Shelby County case is a microcosm of what the legal debate over the Voting Rights Act is all about. As NYU law Professor Rick Pildes puts it, the case has enormous real and symbolic significance.

RICK PILDES: But it symbolizes different things to different people. So to some people, the case is all about whether there continue to be any problems with race and voting in these parts of the country. To other people, the case symbolizes whether the political process today can recognize that anything significant has changed with respect to race and politics in this part of the country.

TOTENBERG: To Alabama Solicitor General John Neiman, for instance, it makes no sense that Congress in 2006 simply extended the law without looking at how things have changed in the South and other covered areas.

JOHN NEIMAN: The problem now is that those circumstances simply don't exist in the South.

TOTENBERG: But Congressman Sensenbrenner disagrees.

SENSENBRENNER: Almost the entire Congress was convinced that they hadn't cleaned up their act.

TOTENBERG: The Supreme Court, however, has hinted strongly that it's not similarly convinced. In 2009, when the high court upheld the Voting Rights Act, Chief Justice Roberts seemed to foreshadow many of the arguments that will be made by Shelby County today.

JOHN ROBERTS: Things have changed in the South. But the act imposes current burdens and must be justified by current needs. The act also differentiates between the states in ways that are in tension with our fundamental tradition of equal sovereignty among the states.

TOTENBERG: To Sherrilyn Ifill, president of the NAACP Legal Defense Fund, those sentiments are just plain scary. She says without preclearance - known as Section 5 of the Voting Rights Act - there's no way to challenge all the legal twists and turns that can be used to deny minorities the right to vote and be represented.

SHERRILYN IFILL: The reality is without Section 5, you can't keep up. We can't keep up. No civil rights organization could keep up with changing polling places, with all of the minute changes that could happen in the thousands of jurisdictions throughout this country. And that's why Congress created it.